|
Crown Liability (Fed) - Burden of Proof. Canada (Border Services Agency) v. B. Cooper [burden of proof]
In Canada (Border Services Agency) v. B. Cooper (Fed CA, 2026) the Federal Court of Appeal allowed a customs appeal, this brought against a Canadian International Trade Tribunal decision which "granted in part the respondent’s appeal of a redetermination decision made by the President of the Canada Border Services Agency (the President) on the tariff classification of a Kershaw branded folding knife imported by the respondent (the Knife at issue)".
The court considers a 'burden of proof' issue, here in this Customs Act context - and addresses any presumption issue regarding the Crown bearing such burden:[5] On burden of proof, the Tribunal’s decision is fundamentally flawed. The Tribunal recognized that the "“burden of proof imposed by subsection 152(3) of the Act with respect to a ‛proceeding’ under the Act lies with the appellant”" (here the respondent), but said that this provision was not fully engaged "“on the particular facts of this case”" because of the lack of "“evidence relevant to an issue (possible [Exclusion]) that underpins the classification decision”" (Tribunal’s decision at paras. 100–102).
[6] To reach that conclusion, the Tribunal attempted to distinguish this Court’s decision in Canada (Border Services Agency) v. Miner, 2012 FCA 81 (Miner), where the Court held that the burden of establishing that the goods at issue were not prohibited weapons fell, according to paragraph 152(3)(d) of the Act, on the person challenging the Agency’s classification of the goods. Otherwise, it cited no authority supporting the view that in a classification proceeding, the burden of proof somehow shifts to the Agency once the goods at issue have been found to be a "“prohibited weapon”" and what remains to be decided is whether an Exclusion applies.
[7] Paragraph 152(3)(d) of the Act is clear. It provides that in "“any proceeding under [the] Act, the burden of proof in any question relating to … the compliance with any of the provisions of [the] Act or the regulations in respect of any goods lies on the person, other than Her Majesty, who is a party to the proceeding or the person who is accused of an offence, and not on Her Majesty”". This rule is subject to only one exception, the one set out in subsection 152(4) of the Act which concerns instances where a person is accused of an offence under the Act and which has no application here. Further, subsection 152(1) of the Act provides that the burden of proof of the importation or exportation of goods lies on Her Majesty.
[8] Therefore, when Parliament intended Her Majesty to bear the burden of proof, wholly or in part, it said so explicitly. This is a strong presumption that Parliament clearly did not intend to impose any burden of proof on Her Majesty in matters governed by subsection 152(3) of the Act, let alone reverse the burden of proof at some point in the proceeding. As is well settled, where the words of a statute are precise and unequivocal, as they are here, the ordinary meaning plays a dominant role in the interpretation (Mohr v. National Hockey League, 2022 FCA 145 at para. 23; Kosicki v. Toronto (City), 2025 SCC 28 at para. 37). Furthermore, in our view, the principle of implied exclusion is also engaged here. As this Court stated in National Energy Board Act (Can.) (Re) (FCA), 1986 CanLII 4033 (FCA), [1986] 3 FC 275, at page 289, this principle has been interpreted to mean that "“[e]xpress enactment shuts the door to further implication”".
[9] The Tribunal’s position, if accepted, would mean that each time, in a proceeding governed by paragraph 152(3)(d), there is an exclusion, exemption or exception in a tariff item, and there are many, the burden to prove that such exclusion, exemption or exception does not apply, would shift to Her Majesty. This is an untenable position given the clear and unambiguous wording of that provision and of section 152 as a whole. As the appellant correctly points out, paragraph 152(3)(d) does not provide for any circumstances under which the burden provided therein is not fully engaged or for any preconditions to its application.
[10] Here, the respondent had the burden of establishing that the Knife at issue was not properly classified under tariff item no. 9898.00.00. He could meet that burden by establishing that the Knife at issue did not meet the definition of a "“prohibited weapon”". This is what he attempted to establish. In the alternative, he could meet that burden by establishing that one of the Exclusions applied. As a matter of fact, the respondent, throughout the classification proceedings, be it before the Agency, the President or the Tribunal, never provided evidence or submissions on any of the Exclusions that could have applied to his case. Yet, the Exclusions are not set out in some obscure guideline or soft-law instrument. They are clearly listed in the impugned tariff item itself.
[11] The Tribunal’s position on Miner is also untenable. The Tribunal distinguished Miner on the basis that it only dealt with the first of the two steps of the "“prohibited weapon”" classification analysis. This distinction is inconsequential because, for reasons stated above, it is premised on the erroneous view that paragraph 152(3)(d) somehow shifts the burden of proof at the second step of the analysis. Again, a person challenging the classification of goods under tariff item no. 9898.00.00 bears the onus of proving that the goods at issue do not meet the definition of a "“prohibited weapon”" or, alternatively, that one of the Exclusions applies to their case.
[12] In the end, in order to correct a so-called "“apparent incongruence”", the Tribunal proceeded, for all intents and purposes, to add words to paragraph 152(3)(d). However, only Parliament can do that.
|
